ALTERNATIVE DISPUTE RESOLUTION: ARBITRATION – Anton Hamman

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Anton Hamman Litigation Department Snyman de Jager Menlyn

Why opt for arbitration? The impulse behind arbitration is the quick resolution of disputes between parties. Parties may opt for Arbitration, a process in which each of them have a say as to how the dispute should be resolved, in which they will choose an arbitrator in whom they both have confidence, and in which they avoid publicity and confrontation in a courtroom. They choose a system which holds the promise of a quick, fair and secret solution, one which takes place at a pace of their choosing and in circumstances most suited to their commercial needs. These are the prospect and promises which an effective arbitration procedure offers. It goes a long way to explain why arbitration has become the preferred alternative dispute resolution. The decision to opt out of the litigation process carries with it certain responsibilities. It is left to the parties now to construct the rules by which they will play. They must find themselves an arbitrator and, once found, must keep him to the mark.

Code of Conduct for Arbitrators: The arbitrators will always discharge his/her duties in such manner as to ensure a fair administration of justice between the parties. The arbitrator will act diligently and efficiently, and always with due courtesy to the parties and their witnesses. It is condition of the appointment that the arbitrator that he/she will devote sufficient time and proper attention to the matter. The arbitrator will insist that the proceedings remain confidential unless the parties agree otherwise. The arbitrator will employ procedures which avoid unnecessary cost or delay and which promote the efficient despatch of his/her tasks. Advantages of an Arbitration: The dispute resolution will take place at a place chosen by the parties and in the circumstances most suited for their commercial needs. The system holds the promise of a quick, fair and secret resolution. The choices of arbitrators available means that the parties can select an arbitrator or class of arbitrators whose remuneration fits their budget. What is the process? The parties should firstly agree that their dispute will be referred to arbitration. Secondly the parties must agree on an arbitrator. The parties should enter into a written arbitration agreement in terms whereof all the parties to the requested arbitration agree to the arbitration also setting out a brief statement indicating that an award in accordance with the claims would fall within the arbitration agreement. The statement setting out the locus standi of each party, the nature of the dispute, all material facts and contentions relied upon by the claimant so as to clearly establish the circumstances of the case, and the relief sought should be contained in the arbitration agreement. The claimant should then file his particulars of claim similar to what would be stated in a normal summons and stating all material facts and contentions relied upon by the claimant to support its claim. The Defendant is then awarded the opportunity to reply to the Plaintiff’s claim setting out its defence thereto similar to a Plea in litigation proceedings. Once each parties have filed their written submissions, the parties should enter into a pre-arbitration agreement similar to a pre-trial minute wherein the parties’ objective is to endeavour to limit the disputes and to ventilate issues to be determined by the arbitrator. An arbitration is then held at a secure location where parties may make their submissions, call witnesses and produce documentation in support of their claim and/or defence to the claim. The arbitrator makes his decision on the case presented by both parties. GENERAL: Unless the parties agree that the decision of the arbitrator will be appealable, the decision of the arbitrator is final and has full force and effect. The dispute is resolved in a quick and fair process.

Complied by ANTON HAMMAN: more than 30 years experienced as an Attorney and Arbitrator appointed by the Arbitration Foundation of South Africa in June 2000.

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